MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 January 2001
	DOCKET NUMBER:   AR2000042314

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Brenda F. Hirschi		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
               	       records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  That his date of rank (DOR) for major be adjusted from 9 September 1995 to 4 January 1994.

APPLICANT STATES:  That he was selected for promotion to major in 1994 while serving in a captain (03) position with a promotion eligibility date (PED) of 
4 January 1994.  He states that due to the activities of the unit, the battalion commander requested he continue to command his company through an upcoming external evaluation.  He states that he honored the battalion commander’s request which delayed his assignment to a position authorized a major until 9 September 1995.  He also states that Army Regulation 135-55, paragraph 4-19.b.(2) allows his promotion to be effective 9 September 1995 but his DOR will be 4 January 1994 since no declination of promotion occurred.  In support of his application he submits letters of support, a copy of his promotion orders to captain and major, and a copy of a congratulatory letter for his selection for promotion to major.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed in the Regular Army in aviation branch effective
5 January 1982.  He attained the rank of captain effective 1 October 1986.  He was honorably discharged on 1 August 1993 and appointed in the Reserves as captain on the same date.

Based on the required 12 years of commissioned service for promotion, his PED for major (04) was 4 January 1994.  He was considered and selected for promotion by the 1994 Reserve Components Selection Board.

The file indicates the applicant remained in a 03 position in his unit and was not promoted to major at the time.  He was assigned to a 04 position effective 
9 September 1995.  A promotion memorandum dated 1 September 1995 was issued to him showing his DOR and effective date for major as 
9 September 1995. 

The applicant was accepted for an AGR tour on 10 September 1997.  He received four Officer Evaluation Reports (OER) for the periods: 10 September 
1995 to 21 July 1996; 22 July 1996 to 22 November 1996; 22 November 1996 
to 14 July 1997; and 15 July 1997 to 14 July 1998.  His DOR on each OER was 
9 September 1995 and was authenticated by the applicant as being administratively correct. 

In the processing of this case an advisory opinion was obtained from the US Army Reserve Personnel Command (ARPERSCOM).  It opined, in effect, that Army Regulation 135-55, paragraph 4-19e, states in pertinent part that officers selected by a mandatory board may have a PED that is prior to the adjourning date of the Board.  Also, the officer’s effective date would be the adjourning date of the board by which recommended. 

ARPERSCOM opined that since the applicant’s PED was before the adjourning date of the promotion board, the effective date of his promotion would be the adjourning date of the 1994 major’s Army promotion list board in accordance with Army Regulations.  However, the Total Army Personnel Command (PERSCOM) has on record that the applicant declined (delayed) his promotion.  Therefore, his effective date of rank will be the date he was assigned to a major/04 position, 
9 September 1995.  Therefore, the applicant’s request should be denied in accordance with Army Regulation 135-55, paragraph 4-19.

A copy of the advisory opinion was provided to the applicant for comment.  The applicant responded that the advisory opinion does not follow the facts and regulations surrounding his promotion.  He concurred with the advisory opinion on how effective dates and DOR are determined by regulatory guidance but disagreed with the vague interpretation that his promotion was declined.  He contends that a staff member of ARPERSCOM, Promotions Branch researched his file and found no evidence that he declined or delayed his promotion.  Additionally, the staff member informed him that the basis for the opinion was a hand written entry on an index card indicating that an unknown person from the 121st ARCOM called ARPERSCOM and stated he had not accepted his promotion immediately.  He contends that this unknown individual did not represent his command or himself and has no legal basis for providing misinformation.  

The applicant contends he entered a verbal agreement with his battalion commander not to move to a 04 position in order to continue to command a company for the good of the command and the Army.  Also, his agreement with his battalion commander to command as long as he was needed was based upon the understanding that he would be promoted with his original DOR when his mission was completed.  He contends that he did the right thing for his command and himself by doing his duty as a soldier to ensure his unit succeeded during the AH-64 Combat Certification.

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS).  This regulation also applies to commission and warrant officers of the US Army Reserve (USAR).  Paragraph 4-19, states, in pertinent part, that unit officers selected by a mandatory board will be promoted on their PED provided they are assigned to a position vacancy in the higher grade.  The effective date of assignment to the higher grade will be the effective date of the promotion for those officers whose PED is prior to the date of assignment.  The PED will then become the DOR.  If an officer declines promotion and later accepts the promotion prior to expiration of declination, the effective DOR becomes the date of assignment to the higher graded position.

Paragraph 4-20, of the same regulation states that an ARNGUS and USAR commissioned officer selected for promotion to the next higher grade may decline the promotion for a period not to exceed 1 year, unless an exception is authorized.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Army Regulation 135-55 states in pertinent part that unit officers selected by a mandatory board will be promoted on their PED provided they are assigned to a position vacancy in the higher grade.  The applicant was selected for promotion to major and elected to remain in a 03 position.  Therefore, he was not promoted in accordance with regulatory guidance prior to his assignment to a major’s position on 9 September 1995.  The effective date of his promotion and DOR is correct in accordance with Army Regulation 135-55, chapter 4-19. 

2.  The Board found no evidence that the applicant specifically declined his promotion in accordance with regulatory guidance.  However, the applicant chose to remain in a 03 position rather than be promoted to major.  Although he contends that he made the correct choice, provisions of law do not support adjustment of his DOR. 

3.  The Board has considered the applicant’s contention that he entered into a verbal agreement with his battalion commander to continue to command his company through an upcoming external evaluation.  However, the Board concludes that the verbal agreement was not binding under existing laws and regulations and serves as no basis to adjust his DOR in accordance with Army Regulation. 

4.  By the applicant’s own admission he was aware of his original PED when he chose to remain in a 03 position.  In his rebuttal to the advisory opinion the applicant stated that he would command, as long he was needed, with the understanding, he would be promoted promptly with his original DOR upon his eventual reassignment.

5.  The Board notes that the applicant authenticated four OERs as administratively correct with his DOR as 9 September 1995.  The Board concludes that the applicant accepted his DOR as 9 September 1995 and provided no evidence to the contrary.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __TEO___  GRANT

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __BFH___  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042314	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.